Reece Gladwin v Adrian Bogescu
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 12 June 2017 |
| Neutral Citation | [2017] EWHC 1287 (QB) |
| Docket Number | Case No: C79YJ669 |
| Court | Queen's Bench Division |
| Date | 12 June 2017 |
[2017] EWHC 1287 (QB)
Mr Justice Turner
Case No: C79YJ669
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
Liverpool Civil & Family Court
35 Vernon Street
Liverpool
L2 2BX
Mr Benjamin Williams QC (instructed by Armstrongs solicitors) for the Claimant
Mr Mark Roberts (instructed by Weightmans LLP solicitors) for the Defendant
Hearing date: 22 nd May 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This case started life as a very straightforward and relatively low value road traffic accident claim but thereafter descended into procedural chaos. Responsibility for this state of affairs is entirely that of the claimant's solicitors who have, through a combination of complacency and procrastination, proceeded as if compliance with the Civil Procedure Rules and the orders of this court were of scant importance. This left His Honour Judge Gregory trying valiantly to rescue what he could from the procedural wreckage when the matter came before him for trial on 8 February 2017. In the event, he granted the claimant relief from sanctions notwithstanding his solicitors' serious breaches for which no good reason had been provided and the direct consequence of which was the vacation of the trial date.
In reaching this conclusion the learned judge considered that, on the very particular facts of this case, the consequences of refusing relief to the claimant would be more prejudicial to the defendant than if relief were to be granted. He thus applied the judicial equivalent of the advantage rule in rugby union and allowed play to continue without formally penalising the offender.
The question arises on this appeal as to whether he was right to proceed on this basis.
BACKGROUND
On 29 November 2014, the defendant drove his car into collision with the claimant's motorcycle. Liability was never in issue. Quantum, however, was in significant dispute. For example, the defendant was naturally curious as to how, according to Facebook, the claimant had managed, at a time when he had told his reporting doctor that he was still suffering from significant symptoms, to win the silver medal in the Kent Kyu Open Judo Competition. The defendant was also sceptical of his claim for hire charges of £17,151.12 in respect of the provision of a temporary replacement for a six year old motorcycle which ultimately cost only £909.78 to repair.
Proceedings were commenced in April 2016. In due course, on 23 August 2016, the case came before District Judge Coffey who gave directions which followed a template then in common use in the County Court at Liverpool in respect of so-called credit hire cases. He ordered service of all witness statements by 4pm on 3 November 2014. The consequences of default were also set out:
"Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the Court."
This form of words followed very closely the terms of CPR 32.10 which provide:
"Consequence of failure to serve witness statement or summary
32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission."
At the last minute, and on the very day upon which service of witness statements had been ordered to take place, the claimant's solicitors asked the defendant's solicitors for an extension of time for service of witness statements until 17 November 2016 and this indulgence was granted. At about that time, the relevant file was passed from one member of the claimant's firm to another. The evidence suggests that the solicitor with conduct of the claim had done nothing whatsoever between August and November to set about the routine task of obtaining a witness statement from her client.
The extended date for compliance came and went. In consequence of an internal procedural failure, the solicitor to whom the poisoned chalice had been passed was not expressly told of the extended date of compliance. One might reasonably have expected, however, that, at the very latest, when the defendant served its witness statements on 17 November then alarm bells would have started to ring at the claimant's solicitors' offices. Apparently, they did not.
Indeed, it was not until nearly a month later on 15 December 2017 in the completed Listing Questionnaire that the claimant's solicitors first acknowledged the fact that they were in breach of the order for service of the witness statements. An immediate application ought then to have been made for relief from sanctions. It was not. In the event, a witness statement was not obtained from the claimant until 5 January 2017.
Eventually, less than a week before trial, the claimant's solicitors applied for relief from sanctions and permission for the claimant to give oral evidence. The terms of the order applied for by the claimant acknowledged that if the relief sought were granted then the trial date would have to be vacated. Mr Williams QC on behalf of the claimant began his submissions on this appeal with the observation that to describe the situation as being unsatisfactory would be a gross understatement. I agree.
On the day upon which the trial ought, but for the claimant's procedural blunders, have gone ahead, the time of the court was, instead, taken up with arguments over the consequences of the claimant's default.
The criteria to be applied in considering an application for relief from sanctions are set out in the leading and familiar case of Denton v T H White [2014] 1 W.L.R. 906 in which the Court of Appeal held that a judge should address such an application under CPR r 3.9(1) in three stages: (i) identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1); (ii) consider why the default occurred; (iii) evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including the factors in sub-paragraphs (a) and (b) of the rule.
In the event, HHJ Gregory found that the breach was significant and that there was no good reason for the default. He rightly described the delay between the time when the default came to the express attention of the claimant's solicitor and the date of the application for relief to be "quite astonishing". Against the background circumstances of the case as I have summarised them, I consider that he was fully entitled to reach the conclusions he did on the first two stages of Denton and indeed counsel for the claimant realistically conceded that he was.
The judge went on, however, to consider the third limb of Denton and reached the conclusion that if he were to refuse the claimant's application for relief from sanctions the result would be that the defendant would suffer greater prejudice than the claimant because the claimant, although debarred from giving oral evidence, would potentially remain entitled as of right merely to rely on his witness statement and thereby evade the perils of cross-examination. Accordingly, the court decided that it was doing the defendant a favour by finding for the claimant whose victory was predicted to be likely to turn out to be distinctly Pyrrhic. The defendant, however, seeks to persuade the court on this appeal that the claimant should have been deprived of the fruits of any sort of victory, whether Pyrrhic or otherwise.
WHAT WAS THE SANCTION?
The first basis upon which this appeal is brought is that the Learned Judge too narrowly interpreted the scope of the order of District Judge Coffey. He was given leave to do so by the judge on paper.
There can be no dispute that the order of the District Judge and the wording of CPR 32.10 both provided for a sanction in the event that witness statements were not served on time. This sanction is one which, by the operation of CPR 3.8, would have effect unless the defaulting party were successfully to apply for relief.
Mr Turton, the defendant's solicitor, set out the grounds upon which his client resisted the application for relief from sanctions in a witness statement dated 7 February 2017. He asserted in paragraph 22:
"…if the claimant cannot give evidence, he cannot prove his claim and it therefore comes to an end."
It would appear that the claimant's solicitor was of the same view. In her witness statement in support of the application for relief from sanctions she conceded that if relief were not given then the likely consequence would be that the claimant would "be unable to recover any of his losses".
The learned judge, however, and quite rightly in my view, expressed the view that such a conclusion would not necessarily be correct. The relevant rule and order go so far as to state only that the sanction for breach is that the author of the statement may not be called to give oral evidence. It makes no provision for the evidential status, if any, of the witness statement as a standalone piece of documentary hearsay. As the learned judge observed:
"…the order says what it says on the face of it and it would not be right in my judgment, for me to seek to qualify it, amplify it or change it in any way."
Counsel for the defendant sought to persuade me that the learned judge was wrong on this point and that the automatic consequence of failing to serve a witness statement is that the party in default will not only be...
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